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Anderson v R [2003] TVHC 27; HC Crim Case No 5 of 2003 (26 September 2003)

IN THE HIGH COURT OF TUVALU

CRIMINAL JURISDICTION

Case No. 5/03

MARK ANDERSON

v

R

BEFORE THE CHIEF JUSTICE

James Duckworth for the applicant
Attorney General for the respondent

Judgement on the Papers 26^th September, 2003

JUDGMENT

The applicant was convicted of murder following a trial in which he sought to reduce the offence to manslaughter on the grounds of provocation. The offence was committed in November 1998 when he was 16 years old and he was convicted in August 1999 by which time he was 17 years old. Dome CJ sentenced him to the mandatory penalty of imprisonment for life. It appears he did not appeal and he has been serving that sentence for a little over four years.

He now seeks declarations from the Court:

1. that as the applicant was under 18 years of age at the date of the offence, that should have been taken into consideration before he was sentenced to a mandatory life sentence;

2. that section 53(3) of the English Children and Young Persons Act, 1933, is applicable in Tuvalu as an applied law and therefore applies in this case;

3. that the above is supported by Article 37 of the Convention on the Rights of the Child which provides that no person under the age of 18 shall be imprisoned for life;

4. that guidelines be given by the Chief Justice for similar cases where a person under the age of 18 is convicted of murder and the length of time that he must serve, if he feels it appropriate to do so.

Counsel for the applicant accepts that the sentence for murder in the Penal Code provides for mandatory life imprisonment and he points out that there is no provision to take the age of a young offender into consideration. In detailed submissions he seeks to persuade the court to intervene and ensure that this prisoner and any future young offender charged with murder shall have a sentence different from that stated in the Penal Code.

The court has sympathy with his standpoint but this proceeding is misconceived. What is effectively being requested is a review by this court of an earlier decision of the same court. There is no power to do that and the court cannot hear such an application.

The application must be refused.

However, the issues raised by counsel for the applicant are of some importance and I would venture to make some further observations. There can be no doubt that courts and legislatures around the world are recognising the need to make special provision for the treatment and punishment of young offenders.

The law in Tuvalu makes no such provision. Tuvalu is, however, a signatory to the Convention on the Rights of the Child and State Parties to the Convention are required to review their laws in relation to children. I would urge the Government to give priority to such a review.

One such matter for consideration is Article 37 which states that no person under 18 years of age shall be sentenced to life imprisonment without possibility of release. In Tuvalu, any sentence of imprisonment is subject to section 80 of the Constitution which gives the Governor General power, acting on the advice of Cabinet, to alter various orders of the court. In particular subsection (1)(e) allows Cabinet, through him to remit the whole or part of any sentence. That provision, therefore, appears to mean that any person sentenced to life imprisonment is not sentenced without possibility of release.

However, that is only true if such a review can realistically be expected to take place. The problem with the section is that there is no automatic process by which cases are brought to the attention of Cabinet and thence to the Governor General for consideration. In most jurisdictions a sentence of life imprisonment or of any long term of imprisonment is automatically reviewed at prescribed intervals and it is rare for a person sentenced to life imprisonment actually to stay in prison for his natural life.

In order to give real meaning to the provisions of section 80, the Legislature could and, I would suggest with respect, should consider legislation to ensure that all cases of imprisonment for life or very long terms must be submitted with all necessary information to Cabinet and thence to the Governor General after perhaps eight or ten years and then at regular intervals of three to four years as long as the sentence continues. Where the prisoner is a young person when the offence was committed, the initial review should occur much sooner than in the case of older prisoners - possibly after five years.

I would ask that the Attorney General pass my comments to Cabinet.

Dated this 20 day of September, 2003

THE COURT.